Meyer v. Territo

GOODELL, J. Plaintiffs sued for $1,701.30 and recovered judgment for that sum. This appeal followed.

Early in 1945 respondents and three other persons purchased adjoining parcels of land in Redwood City at the intersection of El Camino Real and Brewster Street. Respondents’ parcel was approximately 200 feet from the intersection, with a frontage of 50 feet on El Camino Real and a depth of 150 feet.

In contemplation of the purchase respondents and the other three persons (the latter being appellants’ predecessors in interest) entered into an agreement which provided that the [24]rear 20 feet of each lot would be set aside for a paved alleyway wherein a sewer would be installed to which all the properties could connect, and that the cost of the paving and the sewer would be shared proportionately by the owners. The agreement was recorded.

All the work was done by respondents at a total cost of $2,625.52, which they paid on July 30, 1946.

On November 29, 1946, appellants purchased the property owned by the other three parties, lying between respondents’ lot and Brewster Street, with a frontage of 200 feet on El Camino Real and a depth of 130 feet.

Respondents contend that appellants acquired the property with actual and constructive notice of the agreement and that they also orally agreed at about that time that they would pay their share of the paving and sewer work at such time as they improved their property and sold it as improved, or otherwise derived financial.benefit from the use of the property and the improved alleyway, driveway and sewer.

Appellants contended at the trial that their oral agreement was that they were to pay their share if and when they built on the property (which they never did).

Appellants’ first contention is that the action is barred by section 339, Code of Civil Procedure, in that it was not commenced until some three and a half years after the alleged oral contract was made.

The answer is silent with respect to the statute of limitations. “The general rule is firmly established that if a statute of limitation is not pleaded it is waived.” (Hall v. Chamberlain, 31 Cal.2d 673, 679 [192 P.2d 759], citing 16 Cal.Jur. 603-604.)

Appellants say: “We have not cited any cases in this brief because of the fact that the points involved are very elementary and covered by the Code of Civil Procedure with reference to the provisions of the statute of limitations ...” They also say: “At the outset of the trial in the lower court it was stipulated by the parties, which stipulation was approved by the court, that the answer may be amended on its face to set forth the statute of limitations, section 339 of the Code of Civil Procedure of the State of California, as a defense to said action. ’ ’ This is not correct; no section was mentioned. This is what the record shows: “Mr. Rxjmmell: Before we start, I would like to state that the answer, when it was originally prepared was prepared in my office by somebody else and when I went over the pleadings two or three weeks ago,